David Fialkov is the Vice President of Government Relations, as well as the Legislative and Regulatory Counsel, at NATSO. In this capacity, Mr. Fialkov directs NATSO's legislative, regulatory, and legal strategy on a range of issues, including transportation, energy and fuels, labor, data security, and taxes. Mr. Fialkov also oversees NATSO's political engagement program, including individualized legal and political counsel to member companies.
Prior to joining NATSO, Mr. Fialkov was the senior associate in the Government Affairs and Public Policy practice at the law firm of Steptoe and Johnson in Washington, D.C. At Steptoe, Mr. Fialkov advised clients on legislative, regulatory, and political issues, as well as legal concerns. His primary clients included trade associations representing the motor fuel wholesale and retail industries, including the National Association of Convenience Stores and the Society of Independent Gasoline Marketers of America. Mr. Fialkov's focus was not only on the motor fuels business, but also the litany of other issues that retailers confront, including labor matters, foodservice issues, healthcare and employment issues, tax matters and data security.
Prior to joining Steptoe, Mr. Fialkov graduated with honors from George Washington University Law School. He received his B.S. Summa cum laude with highest honors from Clark University in Worcester, MA. He lives in Washington, D.C. with his wife Allison and daughter Lilah.

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NATSO

On March 7, the Department of Labor (DOL) released a proposed rule to update the standard for overtime pay eligibility under the Fair Labor Standards Act. NATSO is currently analyzing the proposal and will produce a more detailed memorandum for members in the coming days. At a high level, however, the rule includes many of the recommendations that NATSO offered during a 2017 DOL Request for Information and the 2014 Obama Administration rulemaking.

Congress held multiple infrastructure hearings in recent days during which lawmakers and witnesses reiterated long-standing calls to fix the nation’s infrastructure funding gaps and began laying the groundwork for House Leadership to bring an infrastructure bill to the floor by spring.

NATSO recently joined a number of other consumer-facing retail trade associations in sending a letter to lawmakers articulating retailers' top principles for any legislation affecting the protection of consumer data privacy. The letter urges Congress to establish a single, uniform, nationwide data privacy law. "Our members have no higher priority than relationships with their customers," the letter states. "To comprehensively protect Americans, any federal data privacy legislation should apply to all industry sectors . . . .All of the companies involved in handling that chain of data should have legal obligations to properly guard it under privacy law, and the law should not solely rely on private contracts to create those legal obligations."

In the last week, the Food and Drug Administration (FDA) has taken several aggressive steps that target convenience stores and other smaller format retail establishments that sell tobacco and e-cigarette and vaping products. It is part of a growing history of FDA Administrator Scott Gottlieb targeting the convenience store industry. Last year, in a televised interview on CNBC, Administrator Gottlieb specifically mentioned "truckstops" when citing stores that do not sufficiently comply with underage tobacco sales restrictions. NATSO is very troubled by such remarks and any effort to specifically target travel centers or convenience stores.

U.S. Senate Finance Committee leaders on Feb. 28 introduced legislation to extend the biodiesel tax credit and a variety of other tax provisions that expired in 2017. The legislation provides for a two-year extension covering activities (i.e., biodiesel blending) that occurred in 2018 and 2019.

NATSO joined a letter with other organizations welcoming furloughed employees of the Food and Nutrition Service, which administers the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), back to work after having been furloughed during the government shutdown.

As the current partial government shutdown continues into its fourth week, one of the lingering concerns that may ultimately help bring politicians together to reopen the government is the potential for SNAP beneficiaries to lose out on their benefits if the government is not reopened. (The Department of Agriculture (USDA), which administers the SNAP program, is not currently funded.) To avoid this issue for the month of February, USDA will be distributing February benefits in the month of January; no new benefits will be distributed in February.

The Federal Motor Carrier Safety Administration (FMCSA) has decided that federal law preempts California's rules for meal and rest breaks for truck drivers. The American Trucking Associations (ATA) had petitioned FMCSA to preempt California's rules and this represents a major victory for ATA.

Parts of the federal government, including the Environmental Protection Agency and the Department of Transportation, remain shut down as the 116th Congress gavels into session. For the time being, however, there are minimal impacts on policies affecting motor fuels or highways. This could change, however, if the shutdown continues for several more weeks.

The 2018 Midterm elections played out largely as expected: Democrats recaptured the House of Representatives for the first time since 2010, while Republicans retained their Senate majority by picking up at least two Democrat-held seats. Democrats also managed to pick up at least four governorships and several state legislatures. The Midterms will usher in a new chapter of the Trump Administration and will have wide-ranging consequences for NATSO’s policy priorities.

Election nights are always overwhelming affairs for those who live and breathe politics and public policy. More than most – perhaps any other – midterm election, the 2018 Midterms will alter the policy landscape within which NATSO member operate for many years to come. With so much at stake, here is a short guide to what I will be keeping my eye on when the election returns come in.
(NOTE TO READERS: NATSO will run a separate, post-election analysis later this week outlining what the election results mean for NATSO’s policy priorities.)

Over the last two years, there has been an extraordinary amount of uncertainty and volatility in renewable fuels and Renewable Identification Number (RINs) markets. This largely has been due to the Trump Administration's desire to "thread the needle" and develop a policy solution that makes both the renewable fuels community and the refining industry happy. NATSO and the retail fuels community have generally been stuck in the middle.

NATSO joined more than 10 retail trade associations in sending a letter to the Federal Trade Commission (FTC) outlining the groups' principles on data security standards and consumer notification requirements in the event of breaches of sensitive data. The letter was in response to the FTC's request for input on the current state of competition and consumer protection law.

The House Financial Services Committee on Sept. 13 favorably reported legislation that would preempt the patchwork of state data breach notification requirements and establish a single national standard.

The Food and Drug Administration has put the makers of electronic cigarettes on notice that they have sixty days to demonstrate that they can keep their devices away from minors, warning that failure to do so could resulting in flavored electronic cigarette products being removed from the market. The FDA also announced that it was sending letters to more than one thousand retailers, including convenience stores and fuel retailers -- along with issuing fines for selling e-cigarettes to minors.

The National Labor Relations Board (NLRB) on Sept. 13 released a proposed rule to establish an updated standard for determining joint-employer status under the National Labor Relations Act. Under the proposal, an employer may be found to be a joint employer of another employer's employees only if it possesses and exercises substantial, direct, and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.

NATSO members are advised that October 13, 2018, (just five weeks away) is the deadline for meeting the remaining underground storage tank (UST) requirements in the 2015 revised UST regulation. NATSO has provided its members some KEY TAKEAWAYS about the compliance deadline.

NATSO submitted formal comments to the Environmental Protection Agency on August 17, outlining the off-highway fuel retailer community's concerns with how the Renewable Fuel Standard (RFS) has been implemented in recent months, while providing the Agency several ideas for how the RFS can be improved. The comments are in response to the Agency's proposed renewable fuel mandates for 2019. Those numbers will not be finalized until November.

This week retiring House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) released draft legislation outlining his vision for enhanced infrastructure investment. The draft legislation is designed to facilitate a process whereby the United States can recalibrate how it pays for infrastructure as it moves into the middle part of the 21st Century, while at the same time providing a mechanism to adequately fund such investment in the near-term as the process plays out. Although many stakeholders -- including NATSO -- object to certain provisions in the draft legislation, it nonetheless represents a important continuation of -- and positive shift in -- the discussion President Trump started when he released his own infrastructure proposal earlier this year.

Scott Pruitt, the administrator of the Environmental Protection Agency (EPA) and one of President Trump's most effective and controversial cabinet secretaries, resigned on July 5 amid continuing revelations about ethical lapses and investigations that plagued much of his tenure at the agency.

The Environmental Protection Agency on June 26 released its proposed renewable volume obligations for 2019 under the Renewable Fuel Standard (RFS). The proposal also includes a proposed 2020 volume mandate for biomass-based diesel. The proposal would increase advanced biofuels volume requirements for 2019 and biodiesel requirements for 2020 while holding the so-called "ethanol" volume requirement steady.

The Environmental Protection Agency has published its final rule designating which areas of the country are not in attainment with the 2015 national ambient air quality standards (NAAQS) for ozone. Fifty-one areas, spread across 22 states and Washington, D.C., are not in attainment, EPA said. Now that nonattainment areas have been designated, state and local governments have up to three years to produce plans outlining how they will reduce emission levels and attain the standards. It is through these plans that states often must impose stricter standards for motor fuel, such as stricter product specifications and Reid Vapor Pressure (RVP) requirements.

NATSO has written a letter to the Department of Agriculture (USDA) urging the agency to reconsider proposed changes to the application form that retailers must submit to redeem SNAP benefits.&nbsp; The proposed updates to the form included specific references to sales data of particular product categories (such as tobacco and alcohol). NATSO's letter expressed concern that USDA is requiring retailers to provide more information than is necessary, and urged USDA to revise the form to avoid dissuading travel centers from participating in SNAP.

In late March, Congress passed and President Trump signed a massive $1.3 trillion spending bill. The 2,232-page piece of legislation contained a plethora of policy changes that are important to fuel marketers. There were also a number of policy changes that were not included in the legislation that would have impacted
the marketing community.

Two recent developments underscore the need for all NATSO members that sell tobacco products to ensure that they are not selling tobacco products -- including e-cigarettes and vaping products -- to minors: A recent "enforcement blitz" specifically targeting retailers of JUUL products; and the Food and Drug Administration's victory in a lawsuit allowing FDA to fine retailers for multiple violations as a result of a single inspection (which NATSO had long argued is impermissible under federal law). Together these developments underscore the need for NATSO members to have strong employee training programs in place to ensure they are complying with federal law.

NATSO on March 26 sent a letter to the U.S. Department of Justice outlining the truckstop industry's opposition to a proposed settlement agreement for the bankrupt refinery Philadelphia Energy Solutions. The proposed settlement would absolve the refinery of many of its RIN obligations under the Renewable Fuel Standard (RFS), and represents in many ways the latest iteration of the years-long battle between merchant refiners that strongly oppose the RFS and other segments of the fuels supply chain that have adjusted their business models based on the RFS's incentives.

The Internal Revenue Service (IRS) has released a guidance document outlining special one-time claim procedures for obtaining the $1.00 per gallon biodiesel blender tax credit for 2017. Notice 2018-21 prescribes rules for how taxpayers can claim one-time credits for selling or using biodiesel, renewable diesel, and other alternative fuels (such as natural gas) in 2017. The notice also outlines how entities can offset liability for federal gasoline and/or diesel taxes with the 2017 credits, and further provides instructions for how taxpayers can make certain income tax claims on biodiesel and alternative fuels.

The National Labor Relations Board (NLRB) has vacated its recent ruling, known as Hy-Brand Industrial Contractors, meaning a more expansive standard for "joint employment" under the National Labor Relations Act is back in effect. This is a negative development for employers, especially those in the truckstop industry. The decision comes after an NLRB Inspector General report questioning one NLRB board member's relationship with a law firm that is involved in the case.

The House of Representatives on Feb. 15 voted 225-192 in favor of the ADA Education and Reform Act (H.R. 620), which would require any Americans with Disabilities Act civil action to specifically identify the alleged ADA violations or barriers to access being alleged. The bill would further provide defendants that own public accommodations (such as truckstop operators) a time period during which they can remedy alleged violations without being found liable in court.

The budget deal that Congress passed on Feb. 8 restores the 9-cent-per-barrel tax on oil to pay for spill cleanups. The tax will not take effect until March 1, 2018, however, and will not be applied to transactions taking place between Jan. 1 and Feb. 28.

An under-the-radar component of the legislation Congress passed on Jan. 22 to end the three-day government shutdown was a provision to delay implementation of the excise tax on high-cost employer health coverage (known as the "Cadillac tax" for an additional two years, until 2022.

These days it seems like federal lawmakers are always campaigning. The U.S. Constitution calls for members of the House of Representatives to run for re-election every two years. These rules were established in 1789 and have not been changed in the subsequent 225 years. The world in which lawmakers operate,
however, has changed dramatically.

As NATSO has previously reported, the National Labor Relations Board (NLRB) in December reversed the controversial Obama-era standard for "joint employment" under the National Labor Relations Act. This was a positive development for employers, particularly in the travel center industry where contract workers (such as equipment inspectors and delivery personnel) and franchise relationships are ubiquitous. However, businesses must remain vigilant of these issues because joint employer liability remains a fact-specific, often state-by-state issue.

In late December, 2017, Congress passed the most comprehensive rewrite of the U.S. tax code in more than 20 years. The legislation contains a litany of substantial policy changes that will have direct implications for travel plaza and truckstop businesses. NATSO has provided for its members this detailed summary and analysis of this legislation and the affect it could have on their businesses.

The Environmental Protection Agency (EPA) on November 30 finalized its renewable fuel volume mandates for 2018. The final renewable volume obligations (RVOs) are very similar to the Agency’s original proposed mandates that were released in July.

The Food and Drug Administration has released non-binding guidance on the menu labeling regulations that are currently scheduled to take effect in May 2018. The regulations apply to restaurants, convenience stores, and supermarkets with 20 or more locations. As a general matter, the guidance document provides little additional clarification and underscores the need for legislation to lessen the unnecessary burdens that certain convenience stores and restaurant models will face under the new rules.

The House Ways and Means Committee on Nov. 2 released the Tax Cuts and Jobs Act to overhaul major aspects of the U.S. Tax system. The bill will be the subject of Committee consideration next week, kicking off formal tax committee action on the first such overhaul of the U.S. tax system in more than 30 years. Senate Finance Committee Chairman Orrin Hatch (R-UT) announced that he plans to release a Senate Republican version of a tax reform bill after the Ways and Means Committee completes its work, as soon as November 9. The Senate Finance Committee could consider its own plan at the same time the full House votes on its plan in an effort to make as much progress as possible on the legislation prior to Thanksgiving.

One of the cornerstones of the Obama Administration’s labor agenda was a multi-year push to expand the number of employees who are required to receive overtime pay (1.5 times the regular rate of pay) for time worked in excess of 40 hours per week. The Obama Administration’s final regulation was delayed before taking effect, and was recently struck down by a federal court. It is unlikely to ever take effect.

NATSO on Oct. 19 filed comments with the Environmental Protection Agency (EPA) in response to the agency's request for input on reducing renewable fuel mandates. Specifically, EPA has suggested that it is considering reducing annual renewable volume obligations (RVOs) by tying them to domestic renewable fuel production capacity, rather than the market's ability to consume renewable fuel. NATSO, in its comments, told EPA that this policy shift would undercut the purpose of the RFS and ultimately lead to higher fuel prices for consumers.

The House Committee on Education and the Workforce on Oct. 4 passed legislation along party lines that would redefine the term "joint employer" under the National Labor Relations Act and the Fair Labor Standards Act. The legislation, which NATSO supports as an active member of the Coalition to Save Local Businesses and was an issue on which NATSO members lobbied at the 2016 NATSO Day on the Hill, would clarify that two or more employers must have direct control over employees to be considered "joint employers."

Federal agencies have continued to waive fuel and trucking restrictions in the wake of Hurricane Harvey.
NATSO has been in close contact with EPA officials and has been aggressively pushing for fuel waivers to enable product to get to where it is needed. NATSO is also working with the Department of Homeland Security in pursuit of a Jones Act waiver to allow foreign-flagged vessels to carry cargo between U.S. ports. This would also help enable product to get to where it is needed.

A federal judge in Texas on August 31 invalidated the Obama Administration's controversial rule expanding the number of employees that are entitled to overtime pay. The focus of the judge's opinion was the fact that the rule -- which would have increased the minimum salary threshold for overtime pay from approximately $23,000 per year to approximately $47,000 per year -- insufficiently considered whether employees actually perform "white collar" jobs and thus should be exempt from overtime.

We Card Awareness Month gets un­derway in September, and the event is a great time for truckstop and trav­el plaza operators to train or re-train employees on the Food and Drug Ad­ministration’s regulations and state law compliance.

The first several months of the Trump Administration have brought with them no shortage of eye-catching, newsworthy headlines. Perhaps lost among the crowd, however, have been several developments on the tobacco space that NATSO members, as tobacco retailers, should understand.

The House Education and Workforce Committee held a hearing on July 12 to examine the murky joint employer standard that has generated much uncertainty in the employment community. The Coalition to Save Local Businesses, of which NATSO is an active member, submitted testimony to the Committee urging Congress to pass legislation clarifying the joint employer standard in a manner that will protect employees while enabling small businesses to avoid legal uncertainties and litigation.

NATSO, along with a number of other retail fuel associations, recently sent a letter to key lawmakers urging them to reject the Trump Administration's proposal to cut the Leaking Underground Storage Tank (LUST) trust fund by almost 50 percent. In his Fiscal Year 2018 budget request, President Trump sought just $47 million for the LUST trust fund; in previous years Congress has provided between $90 million and $100 million for this program.

A group of primarily agricultural transportation stakeholders is urging Congress to support a pilot program that would allow up to 10 states to opt-in to to allow 91,000 pound, six-axle bridge formula-compliant trucks on federal Interstate Highways.

In its proposed Budget released on May 23, the Trump Administration proposed an "application fee" for retailers seeking to participate in the SNAP program and redeem SNAP benefits, formerly known as "food stamps." The fee would be paid during the authorization process (or reauthorization process for stores currently participating in the program). Store authorization lasts for several years.

Congress has passed and President Trump has signed legislation containing a provision requiring the Department of Agriculture to rewrite a provision of the SNAP retailer eligibility rule issued in late 2016. That rule's new requirements, which were scheduled to take effect on May 17, 2017, will now be delayed until the Department of Agriculture can rewrite them to comport with Congress's new directives.

On May 2, the House Financial Services Committee began examining the CHOICE Act, legislation that would repeal many provisions of the Dodd Frank Financial Reform Act, including critical debit reform provisions known as the Durbin Amendment. NATSO strongly supports the Durbin Amendment and is working to ensure that it is not repealed.

The House Financial Services Committee is scheduled to meet today May 2 to consider legislation that would roll back many of the reforms contained in the Dodd Frank Wall Street Reform Act, including the so-called Durbin Amendment, which implemented much-needed debit reforms. The legislation is likely to be approved by the Committee, setting up the potential for the full House of Representatives to consider the legislation in the coming weeks.

The Food and Drug Administration (FDA) on May 1 announced that it will delay the compliance date for federal menu-labeling requirements until May 7, 2018. Restaurants and food retailers were going to have to comply by May 5, 2017.

Over the couple of years there have been several reports of refining companies such as CITGO sending letters to their branded gasoline retailers reminding – and warning –them not to comingle unbranded fuel with branded supplies. “Commingling” is an age-old problem for the retail petroleum industry, and one that branded retailers may often find to be frustratingly restrictive: If less expensive fuel is available, one might ask, why shouldn’t a branded retailer be able to acquire that product and sell fuel at a more competitive price?

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) announced that it is permanently suspending amendments to the 34-hour restart provisions that were issued in 2013. The announcement comes on the heels of a report that FMCSA submitted to Congress finding that the controversial Obama Administration hours of-service amendments resulted in no appreciable benefits.

On March 8 the Senate Appropriations Subcommittee on Transportation held a hearing to examine infrastructure funding needs and options. The hearing was largely positive from NATSO's perspective, as all participants recognized the critical need to invest money to repair and improve America's roads and bridges, and also recognized the superiority of direct federal spending -- for example, by raising the fuel excise tax -- as opposed to "public private partnerships" which can lead to undesirable revenue-raising mechanisms such as tolling and rest area commercialization.

NATSO has learned that President Trump is likely to issue an Executive Order as early as today directing the Environmental Protection Agency (EPA) to shift compliance requirements under the Renewable Fuel Standard (RFS) downstream from the refinery to the terminal rack.

In comments filed with the Environmental Protection Agency on February 22, NATSO urged EPA not to shift the compliance requirements downstream from the refinery to the terminal rack. Many merchant refiners have urged EPA to require wholesalers and retailers to purchase RINs under the RFS. NATSO has strongly opposed this effort.

In a brief filed in federal court on Feb. 14, the Trump Administration Department of Justice reiterated legal arguments made by the Obama Administration to defend against claims from the refining industry that Renewable Fuel Standard (RFS) volume mandates are too high, and from renewable groups that the mandates are too low. This is a welcome development for many stakeholders concerned that the Trump Administration could significantly disrupt RFS implementation, but it remains possible that incoming EPA Administrator Scott Pruitt intends to do just that.

For the second time in as many weeks, a key congressional committee held a hearing to consider funding options for improving the nation's infrastructure. Throughout the hearing, senators emphasized the need to find direct funding opportunities -- such as raising the motor fuel excise tax -- because private financing does not provide a complete solution, especially in rural communities.

In the first of what will surely be many Congressional hearings on highway policy this year, the House Transportation and Infrastructure Committee heard from executives at FedEx, Cargill, BMW, and Vermeer Corp., as well as the AFL-CIO. The hearing was widely bipartisan, and lawmakers called it a good first step in the process of developing a massive infrastructure plan. But it remains clear that Congress and the White House still have a long way to go before they can agree on a viable path forward to raise the necessary revenue to improve the nation's transportation system.

In the days after real estate mogul Donald J. Trump was elected President, I received dozens of phone calls and emails from NATSO members who were excited about the prospects of a Trump Administration. Although there are certainly many reasons why most of NATSO’s membership was pleased with the results on Election Day, high on all of their lists was the fact that Donald Trump advocates a $1 trillion infrastructure investment over the course of a decade.

With Members of Congress back in their districts for the remainder of the year, it is clear that the biodiesel tax credit will not be extended before Jan. 1. Although on prior occasions after it has lapsed it has been extended retroactively the following year, it is not certain that this will occur next year. Given that many NATSO members have historically utilized the biodiesel tax credit to integrate the product into their diesel supply and offer competitive fuel prices, NATSO offers a few points to keep in mind as you plan for 2017.

As NATSO has previously reported, the Department of Transportation's Federal Highway Administration (FHWA) is soliciting public input regarding expanding the types of goods and services that may be offered at highway rest areas located on the Interstate right-of-way. This is a potentially critical development for the truckstop and travel plaza industry.

The Department of Agriculture (USDA) today released final regulations governing retailer eligibility for redeeming Supplemental Nutrition Assistance Program (SNAP) benefits. The final rules accept many of the arguments that NATSO has made throughout the rulemaking process, both in comments filed with USDA as well as in testimony before the House Agriculture Committee.

The Environmental Protection Agency (EPA) on Nov. 23 issued the final volumetric requirements under the Renewable Fuel Standard (RFS) for 2017. EPA also released a final 2018 standard for biomass-based diesel.

In a stunning decision, a federal judge in Texas issued a nationwide injunction against the Department of Labor's (DOL) regulation expanding the number of workers who would be eligible for overtime pay. The regulations would have dramatically increased the salary threshold for exempt employees to $47,476 per year from $23,660. The new rules were scheduled to take effect on Dec. 1.

NATSO met with the White House Office of Management and Budget (OMB) Nov. 18 to discuss the Department of Agriculture's (USDA's) proposed regulation regarding Supplemental Nutrition Assistance Program (SNAP, formerly known as "food stamps") retailer eligibility requirements. The proposed regulation, which is expected to be finalized in a revised form before the end of the year, would functionally prohibit the convenience stores located within travel plazas from redeeming SNAP benefits.

I plan to deliver a detailed post-election analysis and preview of the next Congress and Presidential Administration at The NATSO Show on Monday, January 23, 2017.
In the coming weeks before the detailed analysis in Savannah, NATSO will be taking a “deep dive” into the 2016 election results, examining what they mean for the various public policy issues that affect the truckstop and travel plaza industry.
Today, NATSO examines how the election results alter the national political landscape.

Donald Trump has been elected the 45th President of the United States. His victory has stunned pollsters, political prognosticators, and represents a severe rebuke to the political and media establishment. Voters have selected the ultimate political outsider.

NATSO has been working with the Family Business Coalition to oppose the Department of Treasury's proposed changes to estate and gift tax valuation discounts. As a practical matter, the proposed changes -- which are still be evaluated and have not been finalized -- will significantly change family businesses' succession plans and make it harder for family owned businesses to transition to the next generation.

New rules from the Department of Labor that govern which employees are eligible for overtime pay take effect on Dec. 1, and truckstop and travel plaza operators are working to understand how the rules will affect their operations and how they will comply.

The new Environmental Protection Agency’s (EPA) revised Underground Storage Tank Regulations rules have left several truckstop and travel plaza operators wondering which items in the new UST regulations will be most expensive.

On August 8, 2016, the Food and Drug Administration (FDA) began restricting retailers' ability to sell additional tobacco products beyond simply cigarettes. Such products include e-cigarettes and vaping products, rather than only traditional combustible cigarettes. These products became subject to minimum purchasing age (18) requirements and associated customer age identification verification requirements, as well as marketing and advertising restrictions and a prohibition of vending machine sales of e-cigarettes. The rules also impose these restrictions on hookah, pipe tobacco, and cigars.

NATSO joined a variety of other trade groups in expressing its support for the ADA Education and Reform Act. The legislation would combat a recent trend in frivolous lawsuits alleging minor Americans with Disabilities Act violations for which business owners cannot reasonably be punished. Specifically, the legislation would provide business owners a reasonable period of time to remedy alleged violations before they can be brought to court by aggressive plaintiffs' lawyers.

The governors of Florida, Georgia, South Carolina and North Carolina have declared states of emergencies in preparation for Hurricane Matthew, which is expected to hit the east coast of Florida on Friday.

In a potentially critical development for off-highway businesses such as travel plazas and truckstops, the U.S. Department of Transportation is soliciting public input regarding expanding the types of goods and services that may be offered at highway rest areas located on the right-of-way. The Department is specifically requesting input as to what constitutes a "vending machine," noting that technological advancements in this area have been significant in recent years.

Congress is expected to vote this week on a stopgap appropriations measure known as a "continuing resolution" (or "CR") to keep the government funded through mid-December. Although this will avoid a government shutdown, it will effectively freeze state and local transportation authorities' funding levels, denying them -- until at least December -- increases they had been anticipating.

In a thoroughly disappointing development for retailers and consumers alike, the House Financial Services Committee approved legislation on Sept. 13 that would, among other things, repeal the debit fee reform legislation known as the Durbin Amendment. It passed on a party-line vote, with all-but-one Republican on the Committee voting for the legislation repealing the Durbin Amendment, and all Democrats voting against it.

On Sept. 13, Rep. Diane Black (R-Tenn.) introduced H.R. 5994, legislation that would extend for two years through 2018 the biodiesel blenders' tax credit. NATSO has worked closely with Rep. Black's office on this legislation, and has expressed its support for the bill.

The Food and Drug Administration's "deeming regulation," imposing restrictions on e-cigarettes, vape pens, as well as cigars and pipe tobacco, contains several important restrictions on tobacco retailers that take effect August 8.

The National Conference on Weights and Measures (NCWM) held its Annual Meeting in Denver, Colo., during the week of July 25, 2016. NATSO testified at the Conference, which considered several important issues for travel plaza and truckstop operators. On all three topics on which NATSO advocated, the Conference adopted favorable positions during the critical "voting session" on the final day of the Annual Meeting.

The solicitation for nominations for alternative fuel corridors coincides with the Obama Administration announcing that electric vehicle charging infrastructure may qualify for as much as $4.5 billion in loan guarantees. NATSO has worked closely with the Department of Transportation on these issues.

In a report released on July 20, 2016, the Environmental Protection Agency (EPA) found moderate or severe corrosion in diesel underground storage tanks (USTs). The report stated that the corrosion, which was found inside both steel and fiberglass UST systems, can cause equipment failure by preventing proper operation of release detection and prevention equipment. If left unchecked, EPA said, corrosion could cause UST system failures and releases, which could lead to groundwater contamination.

Although there is not a lot that Donald Trump and Hillary Clinton agree on, there is common ground on the state of the nation's roads and bridges. Both presidential candidates have highlighted the need to invest in infrastructure as a way to kickstart economic growth, an issue on which NATSO's government affairs team is a leading voice in Washington.

NATSO submitted comments to the Environmental Protection Agency on the Agency's proposed renewable fuel mandates for 2017, and biodiesel mandates for 2018. Every year EPA announces mandatory renewable fuel obligations for refiners. NATSO comments on the proposal -- which will likely be finalized in late November -- were largely supportive. Read the comments here

Two new guidance documents, one from the Environmental Protection Agency, and one from a private, industry-funded non-profit, provide practical tips for maintaining underground storage tanks, minimizing leakage and fuel contamination, and maximizing fuel system cleanliness necessary for diesel equipment.

Recognizing the growing and unacceptable problem with chargebacks, Visa has announced modifications to EMV certification and chargeback requirements, and shortly thereafter MasterCard and American Express followed suit. These announcements undoubtedly came in response to growing pressure from retailers and their advocates that the EMV liability shift has resulted in an excessive and unfair increase in chargebacks that retailers have absorbed, often with no viable method for avoiding them.

The House Energy and Commerce Subcommittee on Energy and Power held a hearing on June 22 to examine the Renewable Fuel Standard's (RFS) implementation, market impact, and possibilities for reform. Although Congress is not expected to consider any serious legislative proposal revising or repealing the RFS this year, legislators are likely to examine reform ideas in the next Congress beginning in 2017. The June 22 hearing provided a preview of what that debate will look like.

The Senate Small Business Committee held a hearing on June 16 examining the National Labor Relations Board's (NLRB's) new joint employer standard, where lawmakers heard from witnesses that businesses are fearful and uncertain about their legal responsibilities.

Home Depot Inc. has filed an antitrust lawsuit against Visa and MasterCard, adding to claims from a previous lawsuit alleging that retailers pay too much in swipe fees by now questioning chip-based cards' effectiveness in reducing fraud without PIN authentication.

The Senate Finance Committee on May 14 held a hearing on energy tax policy, the first committee hearing on this topic in the current Congress. The truckstop and travel plaza industry's primary interests in this space at the present time are the $1.00/gallon biodiesel blenders' tax credit, as well as the $0.50/gallon alternative fuel tax credit and alternative fuel mixture tax credit (applicable to sales of LNG and CNG, among other fuels). These provisions, which are scheduled to expire at the end of 2016, were not discussed at the hearing.

NATSO and a group of coalition partners representing the entire biodiesel supply chain, including consumers, sent a letter to members of the Senate Finance Committee on June 13 reiterating support for the biodiesel blenders tax credit. The letter was sent one day before the Committee is scheduled to hold a hearing on energy tax issues.

New York Attorney General Eric Schneiderman has sued Domino's LLC, the worldwide pizza chain, seeking to hold the company liable as a joint employer with several New York franchisees. The lawsuit represents the first time a state enforcement agency has sought to avail itself of the National Labor Relations Board's (NLRB's) recently revised joint employer standard, and is the latest in a recent trend of aggressive government enforcement actions with respect to joint employer liability.

The California Senate on June 2 voted 19-17 against SB 1397, which would have permitted the California Department of Transportation (Caltrans) to seek federal approval to use commercial advertising on changeable message signs when they are not being used for safety or transportation-related messages.

On May 18, the Environmental Protection Agency (EPA) released proposed renewable fuel mandates for 2017 under the Renewable Fuel Standard (RFS). The proposal also included a proposed 2018 volume mandate for biomass-based diesel (the 2017 biomass-based diesel number was finalized in late 2015).

On May 17 the Department of Labor (DOL) released a final rule governing overtime pay under the Fair Labor Standards Act. Although the Final Rule improves upon the proposed rule, incorporating a number of NATSO's comments to DOL, it nonetheless includes a significant increase to the overtime salary threshold, and includes automatic increases in the future. This will present considerable challenges to employees and employers alike.
NATSO is still analyzing the more than 500 page rule, and will provide a detailed summary and compliance guide in the coming days.

Wal-Mart has sued credit card company Visa, alleging the company is forcing the retailer to use a less-secure "signature" method for verifying debit cards in order to route transactions through Visa's own networks to boost profits.

In the coming years, Congress will begin considering a comprehensive overhaul of the U.S. tax code, including potential revisions to a variety of tax previsions that are critical to NATSO members’ operations.

The Food and Drug Administration (FDA) has finalized a new regulation that would extend its regulatory authority to cover all tobacco products, including e-cigarettes and vaping products, rather than only traditional combustible cigarettes.

The Obama Administration on April 22 proposed to require recipients of federal transportation dollars -- mostly states, cities, and metropolitan planning areas -- to track transportation-related emissions and set goals for cutting them. Although it would not establish targets or penalties, the proposal is designed to make state and regional infrastructure planners account for climate impacts to encourage "smarter" transportation planning strategies, such as mass transit and electric vehicles, while discouraging sprawl-inducing exurban roads projects.

Representatives from the trucking industry as well as the Federal Motor Carrier Safety Administration (FMCSA) engaged in a "roundtable" discussion April 13 with the House Transportation Committee to discuss the trucking-related provisions in the long-term Highway Bill that Congress recently passed (known as the FAST Act).

Businesses that own or operate an underground storage tank (UST) system in a state whose UST program does not have "state program approval" status from the Environmental Protection Agency (EPA) are subject to enhanced requirements as of April 12, 2016.

Certain biodiesel producer interests tried in recent weeks to include in unrelated Federal Aviation Administration (FAA) legislation a provision that would have repealed the $1.00/gallon biodiesel blenders' tax credit and replaced it with a producers' credit. Thanks to strong pushback from NATSO and other interested parties, that effort has failed, and the provision has not been included in that legislation.

A job applicant rejected for a railroad mechanic's job because of morbid obesity has no Americans with Disabilities Act (ADA) claim against the employer, a federal appeals court has ruled. Because the applicant's weight was not caused by an underlying physiological disorder, it is not a "physical impairment" under the ADA. Had the applicant's obesity been the result of a physiological disorder that affects a major body system, the applicant's condition would have been protected by the ADA, and the employer would not have been able to reject the employee solely on account of his weight without violating the ADA.

Although Congress passed a 5-year highway bill in late 2015, state departments of transportation (DOTs) continue searching for ways to increase highway investment. Several states are exploring tolling options on interstate highways as a possible funding mechanism.

The House Committee on Oversight and Government Reform held a hearing the week of March 14 examining the Environmental Protection Agency's (EPA's) implementation of the Renewable Fuel Standard (RFS). Under the RFS, EPA sets an annual benchmark representing the amount of renewable fuels that each fuel refiner and importer ("obligated parties") is responsible for generating.

There were several important developments the week of March 14 on two labor issues that are critical to NATSO members: Efforts to expand the universe of employees entitled to overtime pay; and the joint employer issue, which could expose companies to legal liability for how their subcontractors, staffing agencies, and franchisees treat their employees.

Members of the House Agriculture Committee last week raised concerns with the head of the Department of Agriculture's Food and Nutrition Service (FNS), which implements the Supplemental Nutrition Assistance Program (SNAP, formerly known as "food stamps"), over a recent proposed rule that would make it virtually impossible for most travel centers and convenience stores to redeem SNAP benefits. Many lawmakers brought up the same concerns that NATSO has expressed, and FNS officials acknowledged that the proposal has flaws and needs to be improved.

The IRS issued guidance expanding the definition of "targeted individuals" for whom employers may claim a Work Opportunity Tax Credit. Specifically, the IRS added qualified long-term unemployment recipients, effective January 1, 2016. The IRS is also modifying the applicable forms employers use to claim a Work Opportunity Tax Credit.

The Internal Revenue Service (IRS) has released forms that biodiesel blenders can use to file claims for the $1.00/gallon biodiesel blender credit. One form is for retroactive 2015 claims, and the other is for 2016 claims. Claims for biodiesel blends created in 2016 must be filed separately from retroactive clems for belnds created in 2015.

Orton Motor Company won a significant victory for tobacco retailers in recent weeks, successfully convincing a judge that the Food and Drug Administration's Center for Tobacco Products has exceeded its authority in its tobacco enforcement efforts. The legal battle was waged alongside the National Association for Convenience Stores.

An official with the Food and Nutrition Service at the federal Department of Agriculture was questioned at a Congressional hearing over the potential unintended consequences of his office's proposed SNAP regulation, which would substantially, and unnecessarily, increase the requirements SNAP retailers must meet.

The Senate Environment and Public Works Committee last week heard testimony discussing the current state of the Environmental Protection Agency's (EPA's) Renewable Fuel Standard (RFS) program. At the hearing, critics of the RFS argued that the assumptions upon which the program is based -- i.e., continuously increasing motor fuel demand -- are no longer valid and that the RFS should therefore be repealed or substantially revised. RFS supporters testified that the program is needed to increase the amount of renewable fuels in the United States, and said EPA was wrong to lower the statutory volume obligations for the 2016 compliance period.

The Department of Agriculture (USDA) released a proposed rule Feb. 16 that would make it far more difficult for NATSO members to redeem Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamp) benefits.

The Americans with Disabilities Act (ADA) contains two important components that are relevant to NATSO members: First, it establishes design requirements for the construction or alteration of public facilities including travel plazas and truckstops. These requirements are intended to ensure that these facilities are accessible to persons with disabilities. Click here [hyperlink to private below] for a brief summary of the most important components of the ADA’s design requirements for NATSO members.

The National Labor Relations Board (NLRB) recently revised the so-called “joint employer” standard significantly to expand the scope of determining “co-employment” under the National Labor Relations Act. Specifically, the NLRB decided that a company could be considered a “joint employer” if it possesses the right to control various terms and conditions of employment, regardless of whether that company actually exercises such control.

In May 2016, the Department of Labor finalized new rules governing which employees are eligible for overtime pay. The new rules double the minimum salary threshold that employees must earn in order to be exempt from overtime pay, increasing the figure to $47,476/year ($913/week), up from the previous salary of $23,660 ($455/week). This number will be automatically updated every three years based on wage inflation. The new rules do not change the so-called “duties test” applicable to employees who earn more than this salary threshold. The new salary threshold will go into effect Dec. 1, 2016.

The Environmental Protection Agency's (EPA's) renewable fuel identification number (RIN) EMTS (EPA Moderated Transaction System) reporting system suffered multiple setbacks last week that have resulted in lost RIN transactions, RINAlliance has reported. NATSO members that transact in RINs under EPA's Renewable Fuel Standard are advised to reconcile transactions on a daily basis in order to avoid lost RIN transactions.

The week of January 25, 2016 the Senate started debating energy legislation that is chiefly focused on modernizing energy infrastructure and improving energy efficiency. The last major energy law was passed in 2007. Since that time, however, the nation’s energy infrastructure has not kept pace as the United States has become the world’s leading producer of oil and gas and the use of wind and solar is rapidly spreading as their cost has become cheaper.

The Department of Labor (DOL) has issued guidance establishing new standards for determining "joint employment" under the federal Fair Labor Standards Act. The guidance would expand the number of employers who would be considered "joint employers" with other entities, and is just the latest step in the Executive Branch's effort to expand the definition of "employment" to enhance worker benefits.

The Federal Trade Commission (FTC) has amended its Fuel Rating Rule (prescribing labeling requirements on fuel dispensers) as it pertains to gasoline-ethanol blends with greater than 10 volume percent ethanol (E10). The rule is generally designed to update the requirements to accommodate the sale of ethanol blends between E10 and E85 (such as E15). The amendments do not alter the current labeling requirements for E10, diesel, biodiesel, or biomass-based diesel.

NATSO recently met with the U.S. Department of Agriculture (USDA) to discuss an impending rulemaking that will enhance the regulatory obligations that retailers -- particularly travel plazas and convenience stores -- must meet to redeem Supplemental Nutrition Assistance Program (SNAP) benefits.

The Federal Trade Commission (FTC) has asked the Office of Management and Budget (OMB) to authorize a study of e-cigarette sales and marketing, potentially injecting itself into a contentious debate that will become more intense in the coming months when the Food and Drug Administration (FDA) is expected to adopt a final rule regulating electronic cigarettes and vapor/liquid nicotine products.

The Obama Administration released new advice about what Americans should eat to stay healthy, as well as a proposed regulation related to the use of photo identification requirements on Electronic Benefit Transfer (EBT) cards used for the redemption of Supplemental Nutrition Assistance Program (SNAP) benefits, formerly known as food stamps.

Congress passed a tax extenders package that contains a clean, two-year extension of the biodiesel blenders credit (retroactive to Jan. 1, 2015). This is a significant victory for NATSO and the fuel marketing community. After months of intense advocacy efforts opposing a shift from a blender credit to a producer credit, Congress ultimately agreed with NATSO that a blenders credit is better for consumers and the best way to encourage domestic consumption of biodiesel.

On December 15, Congress unveiled a massive tax and spending package that will be debated over the remainder of this week. NATSO will be analyzing the thousands of pages of legislation in the coming days, but is pleased to report that some lawmakers' efforts to convert the biodiesel blenders credit to a biodiesel producers credit has failed.

The five-year highway bill signed into law Dec. 4 by President Obama utilizes a variety of funding mechanisms that are unrelated to transportation. On the one hand, it is a positive development that Congress was able to agree on a long-term package, providing the certainty needed for substantial investments in highway-related projects. This ultimately could make finding a way to pay for highways even more difficult when the current bill expires in 2020.

The 1,300 page, $305 billion highway bill that Congress passed last week contains dozens of provisions that reflect the country's transportation policy priorities over the next five years. Although these provisions generally will not directly impact NATSO members, they will shape the market and regulatory environments within which NATSO members operate. Below is a brief overview of some of these topics.

NATSO, joining a diverse coalition of retail groups, will be sending a letter to the House Financial Services Committee this week opposing the recently introduced Data Security Act of 2015 (H.R. 2205). That legislation, which is favored by the banking community, would unnecessarily impose a variety of complicated and expensive obligations on the retail sector.

The Food and Drug Administration has issued a rule to extend its authority to regulate tobacco products, including e-cigarettes and vape-pens, which are currently unregulated at the federal level. In essence, the proposal would “deem” these products to be “tobacco products.” The Family Smoking Prevention and Tobacco Control Act automatically subjects newly deemed tobacco products to several restrictions that are more relevant to tobacco manufactures than tobacco retailers.

FDA is currently working with state enforcement agencies to conduct undercover inspections of tobacco retailers to ensure that they are complying with federal requirements. NATSO has prepared a document outlining the various issues that these inspections will cover, as well as how retailers should respond if they are accused of violating the law.

On December 15, 2016, the U.S. Department of Agriculture’s (“USDA”) Food and Nutrition Service (“FNS” or “Agency”) published a final rule altering the eligibility requirements for retailers participating in the Supplemental Nutrition Assistance Program (“SNAP” or “the program”). The final rule contained several substantial improvements over the proposed rule which, if it had been enacted as originally proposed, would have virtually eliminated the truckstop industry from SNAP.
NATSO has prepared this compliance guide that contains an overview of the new requirements from the USDA.

NATSO is continuing its outreach to policymakers on Capitol Hill and the Administration regarding biodiesel policy. Additionally, NATSO met last week with the White House Office of Management and Budget (OMB) to discuss the forthcoming Renewable Fuel Standard (RFS) biodiesel volume obligations for 2014-2017.

In the near future, chain restaurants and “similar retail food establishments,” including many restaurants and convenience stores operated by truckstop operators, will be required to post calories for prepared food items that are sold in the establishment. NATSO has prepared this summary and compliance guide for its membership.

American Trucking Associations (ATA) President and CEO Bill Graves recently urged Members of Congress to keep the biodiesel tax credit at the blender level, saying that the incentive has been proven to lead to lower diesel prices at the pump. In a letter distributed to Members of Congress, Graves makes clear that converting the blenders credit to a producers credit is bad policy for consumers.

In the coming weeks, policymakers on Capitol Hill and in the Obama Administration have important decisions to make regarding the future of biodiesel in the United States. As Congress considers whether to extend the biodiesel tax credit and who in the supply chain should be able to claim that credit (blenders or producers), officials at the Environmental Protection Agency (EPA) are expected to release by Nov. 30 annual biodiesel volume obligations for 2014-2017 under the Renewable Fuel Standard.

The Common Sense Nutrition Disclosure Act cleared a key House panel Nov. 4, setting the stage for a Committee vote on legislation that would make the Food and Drug Administration’s menu labeling regulations less burdensome on small businesses. The House Energy and Commerce Committee could mark up the bill, which advanced out of the Subcommittee on Health, by mid-November.

NATSO joined a coalition of more than 200 food and retail groups in urging Congress to support bipartisan legislation that would make small but important changes to the Food and Drug Administration's "menu labeling" regulations. The changes would require the FDA to revise their current rules -- which are scheduled to take effect on December 1, 2016 -- to make it easier for food retailers and restaurant operators to comply, while also revising the enforcement and liability rules to eliminate excessive and disproportionate penalties.

NATSO joined five petroleum and biofuel trade groups in urging the House Ways and Means Committee to extend the biodiesel and renewable diesel tax credit in its traditional form as a blender credit, rather than converting it to a producers credit.

The House Small Business Committee recently held its second hearing examining the so-called "EMV Deadline" and what it means for small businesses. At this hearing, the Committee heard from small business retailers who shared stories of an expensive, confusing transition to EMV.

NATSO members are reminded that the Environmental Protection Agency's (EPA) Underground Storage Tank Rule went into effect Oct. 13. This deadline is significant for 12 states - Alaska, Arizona, California, Florida, Illinois, Kentucky, Michigan, New Jersey, New York, Ohio, Wisconsin and Wyoming – and the territories of Guam, Samoa and the North Mariana Islands -- which do not have EPA-approved state UST programs. In these states and territories, tank owners are now subject to the EPA's updated UST regulations, as well as applicable state requirements.

The Environmental Protection Agency (EPA) issued a final rule establishing ground-level ozone standards under the Clean Air Act. The rule, which did not go as far as the environmental community had hoped, is likely to affect fuel retailers in a variety of ways, primarily by injecting more heterogeneity into the motor fuels market, leading to increased costs of supply and ultimately higher prices at the pump.

Recent data breaches have brought the issue of data security to the top of many merchants’ radar screens. In particular, NATSO has received a number of questions from truckstop owners and operators regarding the October 1, 2015 “EMV Shift” – this refers to Visa and MasterCard’s plans to begin aligning credit and debit cards in the United States with those companies’ proprietary chip technology. This article answers to some of the key questions regarding this important topic.

The Food and Drug Administration (FDA) has released draft guidance designed to assist chain restaurants and similar retail food establishments (including many convenience stores operated by truckstops) in complying with federal menu labeling requirements.

A federal judge approved 28 settlements totaling $24.5 million in so-called “hot fuel” lawsuits. These lawsuits stem from plaintiff fuel buyers’ claims that retailers and refiners violated consumer protection laws by not disclosing or adjusting for the fact that fuel expands in warmer temperatures, thereby making a gallon of gasoline or diesel contain less energy content in warmer months.

The American Petroleum Institute (API), along with dozens of organizations from more than thirty states, has sent a letter to the White House opposing the Environmental Protection Agency’s (EPA’s) proposal to make ozone standards more stringent. The new ozone standards that EPA is considering “could significantly damage the economy by imposing unachievable emissions limits and reduction targets on almost every part of our country,” the letter to White House Chief of Staff Denis McDonough said, adding that states are already committing “substantial resources” towards achieving emissions reductions under current standards.

The IRS announced recently that employers will be able to start submitting test filings of 2015 forms for reporting health coverage offered to employees under the Affordable Care Act. Draft versions of and instructions for Forms 1095-C (documenting employers’ offer and coverage) and Form 1094-C (transmittal summary for Forms 1095-C) are currently available online.

An industry group that advocates for greater private investment in infrastructure said recently that it expects Congress to “punt” on highway and transit reauthorization again in the fall rather than passing a long-term bill. The Bipartisan Policy Center’s Executive Council on Infrastructure, whose members include former House Majority Leader Eric Cantor (R-VA), recommended that Congress pass a six-year reauthorization bill rather than the shorter extensions that Congress has passed in recent years.

A federal judge rejected a settlement between American Express and merchants over credit card fees after discovering that the merchants' lawyer inappropriately communicated privileged details of the case with an attorney for MasterCard. The decision, which could have ripple effects for another settlement agreement between many of the same merchants and MasterCard and Visa, means that the merchants and Amex will have to renegotiate the deal or possibly go to trial.

The U.S. District Court for the District of Columbia rejected a challenge filed by the Coalition for a Democratic Workplace and several other business and trade groups against the National Labor Relations Board's "ambush elections" rule.